The burden of proof on individuals asserting citizenship under Section 9 of the Foreigners' Act, 1946, and the need for documentary evidence and verification of contents to establish citizenship.

JUDGMENT :

Mitali Thakuria, J.

Heard Md. Gias Uddin, learned counsel for the petitioner and Mr. C. S. Baruah, learned CGC for the respondent No. 1. Also heard Mr. J. Payeng, learned Standing counsel, Home Department Assam for the respondents Nos. 2, 4 & 5 as well as Mr. P. Sharma, learned Additional Senior Government Advocate Assam for the respondent No. 3.

2. Pursuant to a reference made by the Superintendent of Police (Border), Nagaon vide IM(D)T Case No. 1218/2004, initially a case being No. FT/H/2020/2012 was registered against the petitioner, namely, Musstt. Naima Begum, before the Foreigners’ Tribunal, Hojai where notice of the case was issued to her on 13.12.2012. On receipt of notice of the case the petitioner on 18.04.2015 submitted her written statement in said Case No. FT/H/2020/2012 along with some Photostat copies to prove her nationality. On 23.07.2015, the petitioner submitted her evidence in chief along with certain documents in support of her Indian nationality.

3. As the matter relates to Jamunamukh Police Station, therefore, on 20.08.2015 the said Case No. FT/H/2020/2012 was transferred to the Foreigners’ Tribunal, No. 10th at Sankardev Nagar, Hojai, wherein, the same was reregistered as F.T (D) Case No. 134/2015. The said Foreigners’ Tribunal No.10th again issued a fresh notice to the petitioner, pursuant to which she appeared before the said Tribunal on 16.09.2015 and she was duly cross-examined by the State. After hearing the arguments put forwarded by the learned counsels for both the sides and on considering the evidence adduced by the petitioner, learned Foreigners’ Tribunal Nagaon, No.10th at Sankardev Nagar, Hojai by the impugned judgment dated 31.10.2016 opined the petitioner to be a foreigner under the Foreigners’ Act, 1946, who had illegally entered into the territory of India (Assam) on or after 25.03.1971.

4. Being dissatisfied with said judgment dated 31.10.2016 passed by the Foreigners’ Tribunal Nagaon Court No.10th Hojai at Sankardev Nagar in F.T (D) Case No. 134/2015, the petitioner has filed this writ petition on 20.02.2017.

5. It is the contention of the petitioner that she is an Indian citizen by birth and a permanent resident of Village-Bherbari, P.S. - Jamunamukh of District-Nagaon, Assam. It is contended by the petitioner that the name of her father is Abdul Jalil and she got married with one Md. Abdul Hoque, who is a resident of Village-Bherbari, P.S. - Jamunamukh, District of Nagaon, Assam. In support of her case, the petitioner exhibited the certified copies of Voters Lists of 1966 and 1971 as Exhibits - 1 & 2, respectively, pertaining to Jamunamukh Legislative Assembly Constituency where the name of her grandfather is recorded. She further exhibited the Exhibits - 3 & 4, the certified copies of the Voters Lists of 2005 and 2014, respectively, that are also of Jamunamukh Legislative Assembly Constituency, where her own name is recorded along with her husband after her marriage. She also exhibited the certificate of residency issued by the Government Gaonburah (headman) of Village-Charlock/Jogijan from her paternal village as Exhibit-5. It is stated by the petitioner that the learned Member, Foreigners Tribunal Nagaon No. 10th at Sankardev Nagar Hojai, Assam, did not scrutinize the exhibited documents properly and arrived at a wrong conclusion declaring her as a foreigner of post 1971 stream. It is further contended that the petitioner produced all the documents and link certificate, where name of her grandfather was recorded in the Voters Lists of 1966 and 1971, but the learned Tribunal did not consider those documents and without scrutinizing the documents properly and without considering the evidence on record, passed the impugned judgment dated 31.10.2016 arbitrarily declaring her as foreigner. Therefore, petitioner prayed for setting aside the said impugned judgment/opinion dated 31.10.2016 passed by the learned Member, Foreigners Tribunal No. 10th at Sankardev Nagar Hojai, Assam, in